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Cold case sexual assault unit whittles sprawling rape kit backlog

A visitor discovered the first victim half-naked in a bathroom at Duke Hospital, recovering from having been choked unconscious. Bits of her attacker’s flesh were lodged under her fingernails, the remnants of a violent struggle.

 A month and a half later, another woman was walking home on Ellerbe Creek Trail when the attacker again appeared and strangled his victim from behind until she blacked out. This time, he raped her. 

Despite a sexual assault kit collected from the second victim, as well as surveillance footage of the first victim and DNA samples from her fingernails, these 2015 attacks went unpunished for six years.

But the attacker, 33-year-old Emanuel Burch, couldn’t hide forever. Thanks to a state-funded initiative with the Durham Police Department (DPD), Burch was sentenced on Oct. 25 to at least 16 years in prison—the latest in a string of convictions in rape cold cases.

Since 2019, the DPD’s Cold Case Sexual Assault Unit has been working through an enormous logjam in mostly untested rape kits. The unit has identified at least three other repeat offenders and has charged over a dozen suspects in total. And they’re only about halfway done.

Said Lt. Stephen Vaughan, who works closely with the unit: “We still have a lot of work to do.” 

A massive backlog

When North Carolina passed the Survivor Act in 2019, the state had one of the country’s most extensive rape kit backlogs. Of the more than 16,000 kits left untested in North Carolina, 1,700 were in Durham County, The News & Observer reported.

Vaughan blames the limitations of old DNA testing technology, as well as previous state restrictions on when rape kits could be processed.

At an October 2020 news conference, however, N.C. Attorney General Josh Stein also referenced a lack of “sensitivity” toward sexual assault victims. He said some police departments used to dismiss a case if the alleged victim’s story varied at all between retellings.

“There’s [now] greater scientific knowledge about the impact of trauma,” Stein said, referring to research that shows traumatic memories are often shaky or inconsistent. “There’s more understanding about victims’ rights.”

The Survivor Act allocated $6 million to jumpstart progress on untested rape kits. In the past two years, Durham County has submitted almost its entire backlog to a private testing company in Virginia. 

Bode Technology is working through these kits — some of which date back to 1988 — alongside a mountain of other kits from throughout North Carolina and other states. Any time the lab gets a hit on a Durham DNA sample, it notifies the Cold Case Sexual Assault Unit.

Catching a rapist 

Police got their first strong lead on the two strangulation attacks in September 2019.

Unlike in many other cold cases, investigators had sent this rape kit for testing shortly after collecting it, said prosecutor Blake Norman. They identified leads and pored through available evidence. But they were unable to match the kit’s DNA to any suspects, and the case soon went cold.

Investigators have two main ways of identifying criminals through DNA.

The simplest way is if a person is arrested on a felony charge. Law enforcement collect alleged felons’ DNA and upload it to the Combined DNA Index System (CODIS), the national genetic database. Testing companies like Bode regularly check their databases’ DNA against CODIS and notify investigators when there’s a match.

This can provide powerful evidence against a suspect. 

“You take away the argument of, ‘Oh, I didn’t do it’ or ‘I wasn’t there,’” Norman said. 

When there isn’t a CODIS match, investigators can also turn to genetic genealogy. Genetic profiling companies like 23andMe and Ancestry.com send their data to law enforcement. So if a suspect’s close family members take one of these tests, that can help investigators home in on the criminal even if the suspect’s DNA isn’t in CODIS. 

By itself, however, genetic genealogy doesn’t provide enough evidence to arrest someone. That’s because it’s imprecise and usually can’t distinguish a perpetrator from, say, their sibling. Investigators need the suspect’s own DNA, and they sometimes have to find creative ways of gathering it—digging through trash cans, collecting cigarette butts, etc.

Durham police identified Burch when they got a CODIS hit following his arrest in another state, Norman said.

A cheek swab confirmed the match, and Burch was charged with strangulation, sexual battery and attempted rape in the first attack, as well as rape and attempted murder in the second. Prosecutors later dropped the attempted rape and attempted murder charges.

Pressing charges

Generally, the judicial system invests little time or resources into crime victims. Prosecutors represent the state, not victims, and some Durham victims have complained about a lack of support from courts and say they have little influence on how their cases are prosecuted.

But the Special Victims Unit, which handles child abuse cases as well as sexual assaults, works differently.

Investigators say they don’t prosecute alleged rapists until they contact survivors and get their consent. Since many attackers are already serving extensive prison sentences by the time police identify them, investigators say, victims sometimes choose not to press charges.

At an Apr. 13 press conference, Vaughan said the Cold Case Sexual Assault Unit had found DNA matches in 17 cases, resulting in 13 suspects being charged.

Once the DPD contacts an alleged victim, Vaughan said police direct the victim to an in-house advocate who works with them and helps them decide whether to go forward with the case. Victims may also speak with the Durham Crisis Response Center, which offers free counseling and confidential services for survivors and their loved ones.

Jasmin Young-Bradshaw, the crisis center’s interim executive director, stressed that there is no “one-size-fits-all” approach to victim advocacy.

“We’re here to listen,” Young-Bradshaw said. “Really, it’s about supporting them in a way that they see is fit.”

Securing a conviction

In addition to Burch, the Cold Case Sexual Assault Unit has identified at least three other serial attackers.

One suspect, who faces charges in one Durham attack and two attacks in Florida, was still awaiting trial as of the April 2021 press conference. Another pleaded guilty in August to two counts of rape. And the third—a 60-year-old—died in March while facing two charges each of rape and sexual battery.

As for Burch, he pleaded guilty as charged in the first 2015 attack and took an Alford plea in the second. This means that he denies sexually assaulting the victim, but admits that a jury would convict him based on the evidence.

A judge ordered Burch to undergo psychiatric counseling, receive substance abuse treatment and participate in a behavior adjustment program for sexual offenders. Altogether, Burch may serve up to 24 years and 3 months behind bars.

It’s unclear if Duke Hospital made any changes to its security following the attack there. A spokesperson said over email that she would try to find out, but several weeks later, she had yet to provide details.

Durham County’s backlog of rape kits is no longer growing, Vaughan said. Police send most kits for testing within a week, and survivors can view the current status of their kit via an online portal.

DNA testing continues to get faster and more accurate, and Vaughan believes sexual assault investigations will improve.

“As the technology gets better and better and we learn more about it and get more used to it,” he said, “it just becomes a better tool.”

If you or someone you know has been sexually assaulted, the following resources are available:

  • Durham Crisis Response Center 24-hour help line: 919-403-6562 (English); 919-519-3735 (Spanish)
  • Durham Police Department Special Victims Unit: 919-560-4440
  • NC Coalition Against Sexual Assault: 919-871-1015

PHOTO ABOVE: Emanuel Burch may serve more than 24 years for strangulation and sexual battery in two Durham attacks in 2015.

Reflections: The Podcast, Episode 2

 

In this latest Reflections podcast, Lilly Clark talks about how the news media’s coverage of the courts system sometimes does more harm than good. And she offers some thoughts on how reporters and editors can do better.  Listen on Apple or Spotify.

This podcast is part of a series that features 9th Street Journal reporters discussing lessons they’ve learned — about themselves and about journalism — as they’ve worked on articles for the site. The first podcast spotlighted Grace Abels.

Reflections is funded by a generous grant from The Purpose Project.

As cases soar, emergency judges keep courts moving

Judge Nancy Gordon emerges from a concealed door behind the bench into Courtroom 5A. No one notices her, except for the bailiff, who stands and commands, “All rise!” 

“This honorable court for the County of Durham is now open and sitting,” the bailiff says on this morning in early October. “The Honorable Judge Nancy Gordon presiding.” 

During the bailiff’s cry, Gordon, 67, walks the few feet to the judge’s chair. She wears thin-frame glasses, and her short brown hair, with a faint white streak, is tied back. Her black robe engulfs her. 

She takes a laptop out from under her arm and places it on the desk. Lingering for a moment, she stands with a hand on the chair. The pause lasts just long enough that when the courtroom sits down after the cry, she does too. That way, they all sit in unison.  

It’s a familiar ritual, one Gordon first took part in for decades as a family law attorney, then practiced as a Durham District Court judge. As a jurist, she has never known if she’s supposed to sit or stand during the cry. That’s still the case now that she’s an emergency judge. 

When sitting judges are unavailable, emergency judges step in to keep the court system — and its ever-growing caseload — moving. Unlike sitting judges, however, they aren’t voted onto the bench by constituents in partisan elections. Most lost their bids for re-election, like Gordon in 2014, or chose not to run for another term. 

On the bench, emergency judges hold the same judicial power they did as elected officials. But there’s no longer the subtle pressure of re-election, or the hovering spectre of a constituency. There’s only the expectation to administer justice fairly and objectively. Before each court session, the bailiff’s cry reminds Gordon of this responsibility.

“Really what [the bailiff’s cry] is about is the institution, not the person,” Gordon said. “You’re representing one of the branches of government, and that’s a whole lot bigger than you.” 

‘I don’t own the court system the way I used to’

When Gordon lost re-election’, she spent 90 days away from the bench — the minimum time before she could apply to be an emergency judge. 

Once an emergency judge is placed on an active list, the North Carolina Administrative Office of the Courts (AOC) and the chief justice of the state supreme court can assign them to hold court for several reasons, including if a judge goes on medical leave, if a case overload occurs due to a vacancy, or if a judge recuses themselves. 

Emergency judges’ schedules are unpredictable. They may serve in any county in the state, unlike sitting District Court judges. Gordon has spent a single day in some courtrooms; in other courthouses, weeks. 

Gordon was assigned to oversee domestic violence cases in Durham for a week in October. Since August, she has filled in for former District Court Judge Brian Wilks after his promotion to Superior Court.

On Oct. 13, Gordon is sharp and quick. One attorney requests that today be her client’s last appearance for a two-month long case. Without looking up, Gordon cuts her off and snaps, “I’m not marking it last.” They schedule another appearance.

Gordon runs through the afternoon’s 37 cases with remarkable speed. 

Once, she raises her voice at a witness who filed a complaint against the mother of his son. 

“Do you know where your eight-year-old goes to school? Do you have custody papers?” Gordon chides. “If you really want your son to live with you, you should know how he’s doing in school.” 

He tells Gordon that his son is playing the guitar at an upcoming talent show, and her tone softens. She asks if he and the mother can stay 500 feet apart at the event. 

Gordon commands the courtroom, in part because of her familiarity with Durham. But over the last seven years, the state has changed — and so has her work. 

She doesn’t know the younger lawyers, and they don’t know her. When she gets assigned to other counties, they don’t know what to expect from her. Smaller counties welcome visiting judges, but “in a sort of sucking up way that makes me a little uncomfortable.” 

“I don’t own the court system the way I used to,” Gordon said. 

By this she means she isn’t overseeing cases as often as she did as a District Court judge. But if owning the system also means making judicial decisions without the stress of re-election, Gordon might own the system more now than she ever did. 

‘It was like watching heads explode’

In North Carolina, defendants who participate in the state’s community service program must pay a $250 fee. But many can’t come up with the funds, Gordon said. Instead in Durham, judges order community service at a non-profit.

So that’s what Gordon ordered when she went to oversee criminal court in Alamance County, a region in north-central North Carolina that leans Republican. 

“It was like watching heads explode,” Gordon said, laughing. “They’d never seen this before. And I’m sure they were thinking, ‘Who is this progressive judge coming from Durham, that little blue hole?’” 

She could do that because she doesn’t plan to run for office again. As an emergency judge, Gordon doesn’t wonder if the lawyers like her judicial philosophy and will vote for her re-election, she said. She doesn’t worry about how she’ll raise campaign funds. And she doesn’t have to fret about whether someone will challenge her in the next election. 

“I just need to be on the right side of judicial standards, which makes me feel a little more independent about some of the things I can do and not do,” she said. “I just have to do the job that I think is a good job.” 

Re-election is an unspoken concern among sitting judges. Another emergency judge, Lunsford Long, noted that sometimes, sitting judges recuse themselves from a “hot-button type of case that’s going to have political ramifications.” 

“So [the AOC] calls in an emergency judge and says, ‘Look, you’re not an elected judge. You’re not from here. Why don’t you come down here and resolve this mess,’” said Long, who served as an elected judge from Orange County from 2009-2016. “[Judges] wouldn’t say that they’re [concerned about re-election], but that’s obviously what’s going on when they want to duck the case.” 

Attorneys who work in the same courtroom daily also grow familiar with their judges. Sometimes they become too familiar, which makes arguing cases in front of an emergency judge difficult, said Christy Malott, a senior staff attorney at JusticeMatters, an advocacy non-profit. 

If Malott knew who the emergency judge was ahead of time, she altered her presentation: the aspects she focused on, the way she presented evidence. She called attorneys in other counties and asked, “Who knows this judge? What do I need to know in order to do a good job?” 

“Bringing in a new judge can make it a little bit harder, but the alternative is that all those cases don’t get heard,” Malott said. “The calendar gets more and more backed up.”

‘Court should still be able to work’

In 2017, the number of emergency judges was hacked by two-thirds in a General Assembly budget cut. 

The AOC did not respond to requests for comment and recent data on the number of emergency judges in time for publication. 

Gordon, who views her role as an “experienced, knowledgeable backup,” believes the state should make more emergency judges available. Sitting judges bear caseloads that are too large and practice too little self-care, she said. 

“Judges should be able to take a vacation and their court should still be able to work,” she said. 

In the middle of Gordon’s October session, a defendant doesn’t know the name of his public defender. She tells him that it’s Barbara Lagermann and recommends that he meet her before his next court date, which Gordon schedules for Nov. 30. 

As he turns and begins to walk out of the courtroom, Gordon yells, “When’s your next court date, sir?” 

He’s startled. Over his shoulder, he mumbles, “November 30th.” 

Grinning, Gordon throws up her arm and gives a thumbs up: “You’re free to go.” 

Being a judge is solitary work. If you do it right, Gordon said, the job is also exhausting. Yet none of that deters her.

“Retirement’s not all it’s cracked up to be,” she said. “I like keeping my head active. I like being a judge.” 

 

PHOTO ABOVE: Judge Nancy Gordon has been an emergency judge since losing a re-election bid in 2014.

 

Despite reform, unwritten rules run NC’s bail industry

In Vance County on a recent Tuesday, a bail bondsman faced off against the school board attorney: $15,000 was at stake.

Two eldery bailiffs manned the metal detector in the courthouse. Past a few squares of mousy carpet, a sign above two gray doors read “District Court #1.”

Bail is complicated. State laws, judges’ policies, District Attorneys’ office culture, and even the discretion of school boards influence the bail bonds industry and determine whether people can pay the price of their freedom. 

Despite a DA policy discouraging cash bail, the industry is very much alive in Durham and throughout the state. And dozens of people in that spacious courtroom were about to witness the complex system in action. 

Sekayi Brown, the bondsman, felt a little nervous. He sported a black polo shirt tucked into khakis, and his black mask was adorned with the NC Bail Agents Association (NCBAA) logo. Tattoos sprawled across the thick carob-colored biceps of this ex-Marine and former chef with a criminal justice degree. 

Brown drove the 45 minutes from his Durham office to ask the judge for his money back.

‘Too big of a risk’

In North Carolina, if someone misses court, a bondsman has five months to find them. If they don’t, they have to pay. But then they have another three years to recover the person and appeal to get their money back.

Laws like these shape bondsmen’s unwritten rules. For example, many bondsmen refuse to bail out immigrants out of fear that they could flee, Brown said, though that’s not his policy.

Brown said he’s often willing to take riskier bonds because he doubles as a bail enforcement agent, or bounty hunter. He has the tools and manpower to find people himself. 

But sometimes even recovering a person in the five-month window isn’t enough. If a person fails to appear twice, gets out on bond again, and misses court for any reason, the bondsman has no chance to get that money back. The person facing charges may be laid up in the hospital. It doesn’t matter. No exceptions. 

Brown used to write some of those bonds anyway. He usually doesn’t anymore. 

“That’s just too big of a risk for us to keep doing until they change that statute,” he said.

In his Durham office parking lot, black truck idling, one of Brown’s two cell phones rang with a case just like that.

“Brown Bail Bonding,” he answered. 

On the line was a woman who had missed court twice on misdemeanor charges for property damage: she said she broke a window in 2019. She had just learned about a warrant for her arrest and expected a $2,000 bond, though she hadn’t turned herself in yet. 

She works as a nurse and has kids. She has no time to sit in jail.

Brown told her he doesn’t usually write these anymore, but if she puts up $1,000 as collateral, which she’ll get back after the trial, plus the $300 nonrefundable fee, he’ll do it. If she misses court again, he’ll have the collateral to cover some of the loss. She agrees to his conditions.

After the call, Brown said he could tell that she’d talked to other bondsmen and heard one “no” after another. One more missed court date and the money’s lost for good, so they won’t do it.

“A lot of people are in jail for that reason,” Brown said. ”Right now, they have two [failures to appear] and no bondsman will get them out.” 

The debate over cash bail

Cash bail is an old system, one that burgeoned during the tough-on-crime era in the late 1980s and early 1990s. The NC Bail Agents Association formed in 1992 and has lobbied since then to reduce the risk of financial loss to bondsmen, motivating them to write more bonds.

Now the industry has power in the legislature, and community advocates want to see the end of bail. Groups like the NC Community Bail Fund of Durham, created in 2017, say the current money bail system criminalizes poverty. It forces people who can’t afford to post their own bail to pay a fee to a bondsman or plead guilty to go free quickly. The alternative — staying in jail, even for just a few days — could mean risking their jobs or custody of their children.

Without financial resources, people throughout North Carolina sit in jail for low level crimes, even though they’re not likely to flee or pose a danger to the community, experts say. That’s punishment for being poor, activists say, and they want the laws changed.

Durham District Attorney Satana Deberry ran on a platform of decreasing cash bail, and her office has a policy that discourages it. Assistant District Attorney Daniel Spiegel said they try to detain dangerous individuals on high bond and release everyone else.

This would mean, in an ideal world, there would be no small bonds in Durham County. No one would worry about paying their way out of jail for breaking a window. But it isn’t that easy. 

“It’s just not something that the law allows right now — to just decide release or no release, without money involved,” said Sarah Willets, spokesperson for the DA’s office.

The second-chance guy

Brown had seen some of this. He had noticed some big bonds getting bigger and small bonds getting smaller, with more people released on a written promise to appear. But he still has plenty of business.

Asked about a situation like that of the woman who called Brown, Spiegel said cases like hers aren’t easy.

“Where someone has a relatively minor offense, maybe a misdemeanor, and continually misses court, that can be very difficult,” he said.

Durham judges also have a bail policy that contradicts the DA’s. Theirs includes a bail schedule that recommends a dollar range by type of charge, something Deberry’s office hopes to leave behind.

Surprisingly, Brown doesn’t insist on bond’s necessity.

“Do I think that if you get arrested, you should have a bond? I don’t think you need to have a bond every time,” he said. “In my heart, I believe that most people will go to court. If given the option, they’ll go to court without having a secured bond.”

He’s also the second chance guy. With beliefs about innocence shaped by an internship fingerprinting sex offenders in California, to him, every charge is just an allegation until it’s tried. 

“I’m trusting that you’re gonna go to court. Right?” he said. “That’s really all I care about.”

A strict interpretation

Erwin Santo, the Vance County no-show, wasn’t easy to find after he missed court in May. Though Santo faced DWI charges in Vance, Durham was home. That’s why Brown got involved.

Back in the courtroom, Brown told the judge that he apprehended Santo twice. Once, he caught him at a nightclub but let him go because his ID claimed he was someone else. That was two days before the five-month deadline. 

Brown clasped his hands on the podium as he faced the judge. He had paid the court $15,000 and kept looking for Santo. He said he found him again 36 days later and took him to jail. 

Surrendered bail money goes to fund county schools, so the white lawyer with a swoop of gray hair, glasses and an orange tie, Jerry Stainback, stood near the judge to represent the school board.

Stainback asked the judge for a “strict interpretation” of the five-month statute.

“Motion denied,” said Judge Amanda Stevenson, glancing up. It all took less than two minutes. 

Shocked, Brown retreated back over the mousy carpet, past the bailiffs and metal detector. 

“She’s just like, no expression, just denied. Like, what?” he said outside in the car. “It just kind of left a bad taste in my mouth.”

Brown made $1,500 minus fees off this bond initially, but it’s a net loss. An “expensive lesson,” he said. In Durham County, he’d have gotten the money back without appearing before a judge — that’s the school board lawyer’s practice here.

Brown later said he plans to appeal the decision.

While small bonds are still around, the rules that discourage bondsmen from posting bail for certain people remain convoluted and widely unknown. Whether it’s two failures to appear  or the mercy of a school board lawyer, these rules determine who can use the industry to go free. Freedom paid for is freedom nonetheless.

“I may just say we’re not gonna write Vance County anymore. Because that was a big hit,” Brown said. “That was the biggest bond I ever paid in 16 years.”

 

Justice is blind. But what you wear to court matters.

At the Durham County Courthouse, judgments begin before a case is even heard. 

The first judgment happens at the doors of the courthouse, where deputies decide who enters. They scan dockets for defendants’ names, wave lawyers through, and direct victims and witnesses to courtrooms. As they do so, they glance at what each person wears, determining whether an outfit is presentable for court. 

The second round of judgments occurs at the doors of the courtroom. On a recent Wednesday outside of Courtroom 5A, a bailiff checks names again. This time, though, she looks closer at clothing. 

She mistakes a defendant wearing a crisp navy blue suit and glossy brown loafers for an attorney. She instructs defendants whose boxers peek through sweatpants and jeans to pull their pants up. Tuck t-shirts in. Take snapback hats off. If they don’t, she warns, the judge may not hear their case. 

There is no dress code in the Durham courthouse. Justice, after all, is supposed to be blind. But courtrooms are stages for human drama, where dress and decorum matter and their impact on one’s image is impossible to ignore. In other words, perception can shape justice.

“There’s a general formality in court that can be intimidating,” said Sarah Willets, spokesperson for Durham’s District Attorney’s office. “Even if no one has said to you explicitly, ‘You can’t wear this,’ you still get the sense when you walk in court that there’s a certain way things are usually done.”

In the courtroom itself, some outfits are expected. There are attorneys in suits and ties, blazers and pencil skirts. Bailiffs stand guard in beige uniforms, and the judge dons a traditional black robe. 

The clothes in the gallery, however, tell a story of defendants, victims, witnesses, and relatives who put their daily routines on pause to watch judges decide fates. 

                                                                           * * *

When a defendant is called up, judges take their attire into account. Some judges who don’t approve of an outfit won’t hear a defendant’s case until they change, said Durham’s Chief Public Defender Dawn Baxton. 

For some defendants then, an outfit can reflect the significance of the moment and indicate to the judge their regard for the legal process. On that Wednesday in Courtroom 5A — domestic violence court — the man in the crisp navy suit, Benjamin Wendt, slides a briefcase under the bench before fixing his tie. The court finds out he is representing himself. 

Wendt sits next to Ananias Surratt, a young man whose clothes suggest that his court appearance coincided with his plans to go for a run. Surratt wears navy athletic shorts and a black hoodie, along with a pair of red, white, and blue New Balance sneakers.

Both men are in court for the same charge — assault on a female. 

Baxton thinks judges regard inappropriate attire as disrespectful to the judicial process. 

“Judges might have, in their mind, a standard,” Baxton said. They consider tank tops and shorts to be inappropriate. They take offense at some writings on t-shirts. 

But for many defendants, the clothes they wear to court are the best they have. In fact, to address this issue, staff at the Public Defender’s Office have collected a closet of donated professional clothes. 

“I think judges don’t take into consideration the circumstances that people are coming to court in,” Baxton said. “Some leave work and come straight to court. Others don’t own business attire. These are things that I don’t feel should be distracting a case from getting heard.” 

                                                                         * * *

Later that day in Courtroom 5A, a victim takes the stand. She wears a burgundy striped button-down shirt and black skinny jeans. Her large black handbag sits on the table. 

Between shallow breaths, she recalls the night of July 9, one of many when the father of her children came home high and assaulted her. She fell and hit her head. 

“That’s what you deserve,” she recalls him saying. Her voice cracks. She begins to cry.  

Most victims and witnesses have never been to a courthouse before. In their first visit to a building consumed by decorum, they relive trauma — a judge interrogates their story, a jury questions their credibility. What they wear can affect both how they present themselves and how the judge perceives them. 

“[Clothing] matters in terms of feeling comfortable and feeling like you belong there,” Michelle Cofield, deputy chief of staff at the DA’s office, said. 

For years, the DA’s staff  scrambled to find solutions when victims and witnesses didn’t show up in court-appropriate clothing. Legal assistants kept jackets on hand. One assistant district attorney stashed extra clothes in her office. 

In September, the DA’s Office established a lending closet of professional attire for victims and witnesses. A month earlier, the North Carolina Conference of District Attorneys allocated $500 to each prosecutorial district to purchase clothes for people to borrow. Cofield had a week to order them off Amazon. 

Now, over 45 items hang on a garment rack in the corner of Room 8600, known as the guest room — a space for victims, witnesses, and their families to wait during court. 

In the middle of the rack, a black dress with hot pink and turquoise flowers sits next to four identical black cardigans, size medium to 2XL. There are two short-sleeve pointelle shrugs from Loft: one in black, one in white. A salmon-colored wraparound sweater with balloon sleeves is a favorite among office staff. 

“We relied heavily on sweaters,” Willets said. “It’s freezing in this building all the time.” 

DA staff donated a third of the clothing. Willets points to a black button-down top with white polka dots and a cheetah motif she once wore. Her husband’s old blue dress shirt is one of 10 in the closet. 

The range in clothing style and size ensures inclusivity. It also gives victims agency over a small part of the court process. 

“When people are victims of crime, part of that experience is having choice taken from you,” Willets said. “Something happened to you and you didn’t have a say in it. And so we try to give people back that choice wherever we can.” 

While a victim might feel comfortable in their own attire, DA staff considers how a judge or jury will view the outfit, Cofield said. Sometimes, playing a guessing game of “what people might perceive” means the DA’s office can present a more compelling case.

“We spend a lot of time working with our victims or witnesses and preparing them for court,” Cofield said. “We don’t need one other thing to get in the way.” 

The goal is for the victim’s clothing to appear neutral and not distract from their testimony.  If an outfit is deemed inappropriate or a wardrobe malfunction occurs, the closet is there. “Our court system is built using people,” Cofield said. “It’s not a series of automatons that are making the decisions.” 

People make assumptions based on how others are dressed. It’s inescapable. Cofield searched for the right word to describe why attire plays such a big role in the courtroom, particularly for victims.

She landed on “dignity.”

PHOTO ABOVE:  The Durham District Attorney’s Office provides clothes for victims and witnesses who may need appropriate attire for court. Photo by Josie Vonk, The 9th Street Journal.

 

 

Seeking safety, victims of domestic violence go to court. But it’s not that simple.

Two women come before a judge seeking domestic violence protection orders. In one case, a woman alleges that her abuser is trying to get possession of the house. In the other, a woman claims that her partner has physically harmed her.  The judge denies a domestic violence protection order to the first woman but grants one to the second. 

The first woman is killed by her abuser. The second woman’s allegations turn out to be false.  

“I think I used to keep those [two complaints] on my wall because I think that you have to remember your gut instinct isn’t always your right instinct,” says Durham County Judge Nancy Gordon, who heard the two cases at a judge’s training in North Carolina in 2007. 

Domestic violence protection orders, known as a DVPO or 50B order, per the legal statute that created them, are the court’s way of requiring perpetrators of domestic violence to stay away from victims or face arrest. But obtaining an order is fraught with complications. 

Judges, prone to their own biases, act fallible. Nervous complainants sometimes file and withdraw their request several times. Victims must advocate for themselves despite frequently lacking legal experience. 

Since the onset of the Covid-19 pandemic, Durham County courts have seen an influx of domestic violence cases, judges and prosecutors say. Even before the pandemic, increasingly sophisticated and discreet tracking technology made it easier for abusers to stalk their victims.

In 2020 North Carolina saw 61 homicides by intimate partners and 45 so far in 2021, according to the North Carolina Coalition Against Domestic Violence.

“They all keep you awake at night,” says Gordon, referring to protective order cases. A stylish white streak of hair frames the face of the judge, first elected to the bench in North Carolina in 2006.

“If something is alleged and you don’t give somebody an ex parte order” — a temporary protective measure — “you look in the — I look — in the newspapers.” 

‘A drastic remedy’

A DVPO results from a civil filing by the victim. At the first hearing, the judge decides whether the defendant has committed an act of domestic violence based on what the plaintiff brings to the judge. The judge may issue an ex parte order, valid until the next hearing.

“That’s a pretty drastic remedy, “ Gordon says. “You could be kicking somebody out of their house. Where are they going to go? It’s Covid, so you have to think about what it is you’re doing.”

The plight of victims is often dramatic. But the bureaucratic grind of court obscures that turmoil. 

In the breezy, dimly lit Courtroom 5A, otherwise known as Durham County’s domestic violence court, Judge Doretta Walker asks each plaintiff, “Is everything in your complaint true?” 

“He comes over to my house. I don’t want him to get close to my children because he is very aggressive,” responds one woman in a leopard-print cardigan and low-rise pink pants. 

The woman uses an interpreter. The two huddle shoulder to shoulder at the corner of the bench far across the courtroom from Walker. 

“Anything else?” the judge asks.

“He tries to come looking for me. I don’t want him to get close to me.”

Walker grants the woman an ex parte order. 

To qualify under Chapter 50B, plaintiffs must show that someone currently or previously in their household has threatened, harassed, or actually injured them or their child.

On another recent afternoon in Courtroom 5A, a young woman dressed casually in jeans stands straight as a board before Gordon. Her round belly pushes against her burgundy T-shirt; she has two children and another is on the way. 

She explains to Gordon that her former roommate’s behavior drove her to call the police four times. The two once lived together, but the woman wants the man gone permanently from her apartment.

Each time, she says, the police told her that she must evict him.. 

His name is not on the lease, so Gordon advises the woman to, “keep a copy of the lease in the apartment and on you.” 

Before deciding whether to approve an ex parte order, Gordon also inquires about who can get the children from school. The woman says she has already taken the man’s name off the pickup list at her kids’ Early Head Start program. 

Gordon grants the order. 

‘What good would this do…?’

After an ex parte hearing,  both plaintiff and defendant — the alleged abuser — are expected to show up in court again together, usually within 10 days.

During the second hearing,  the defendant makes clear whether they’ll consent to the order. If the defendant does not agree to the DVPO, the judge will hold a trial to decide whether to keep the order in place. 

In Durham County District Court, plaintiffs frequently fail to show up for this second hearing. Often judges then dismiss the case. 

Judge James Hill says he is sympathetic to the plight of domestic violence victims. In fact, it has afflicted at least one member of his family. That relative entered and withdrew “three or four orders,” Hill says, and then finally followed through. 

But he dismisses cases when victims do not show. One day recently in his courtroom after a day of cases, Hill sat in his chair and waved an imaginary piece of paper, representing a protective order.  What good would this do against someone with a weapon, he asked.  

“Until the victim decides they want to do something, there’s not a whole lot we can do,” said Hill, 71, a retired jurist who now fills in as a substitute judge throughout the state. 

Many victims agree.

Melanie, a Triangle resident, says that she has a protective order out against her abuser. Still, she had to move from two different shelters because he found her.  

Now she also has a 6-month-old son to protect. The 9th Street Journal is not fully identifying her for her safety. 

“So honestly, the order of protection isn’t really helpful,” Melanie wrote in a Facebook message. “They go to court [and] get right out, especially if they have money, power, and resources.”

There are other incentives for individuals to seek a protective order.  To get a divorce in North Carolina, for example, a couple must be separated for one year, and to be considered separated, they cannot live together. A DVPO can force a spouse out of the residence, Gordon says.

In other words, the courts can be a theater to work out personal relationships.

“Unlike 100 years ago, they don’t send you to the church to work it out. They send you to the courts,” says Gordon, a family law attorney for more than two decades before being elected to the Durham County District Court. 

Meanwhile, Melanie tries to get herself back on her feet. She has reached out to a local mutual aid group asking for financial support. She says she does not want to be a burden to the community. 

 “It’s hard starting over, especially with a baby,” Melanie says.

PHOTO ABOVE: Durham County Judge Nancy Gordon says protective order cases “all keep you awake at night.” Photo by Josie Vonk, The 9th Street Journal.

People skills. Check. Saying yes. Check. This is no ordinary bureaucrat.

Trial Court Administrator E. Deneen Barrier’s desk is a mess.

Pushed into a corner beside her monitor, an enormous stack of jumbled documents dominates the space. Barrier thumbs through the pile as she hunts for a jury selection calendar, flipping past paperwork from seemingly every department in the Durham County Courthouse.

Similar “pockets of danger,” as Barrier refers to them, litter the office. They include a thick stack of papers labeled “shred and destroy,” a mountain of boxes and scrambled files, and a whiteboard calendar still reading “May 2021.”

Barrier wears many hats in the courthouse, all of them involving keeping operations as smooth and organized as possible. But she doesn’t see bureaucracy the way most people do. Some might associate court management with red tape and closed doors, but Barrier said she’s centered her career around creativity, openness and a willingness to say “yes.” 

And sometimes that means learning to work with chaos.

“It’s a Broadway show,” Barrier said, referring to the courthouse. “It’s the lights, it’s the cameras, it’s the props—it’s all that.”

The problem-solver

Barrier’s office sits at the top of the courthouse, on the ninth floor — the same floor as the judges’ chambers and the District Attorney’s office. Her window offers astonishing views of downtown Durham surrounded by a sea of trees.

Barrier loves discussing her work. Dressed in slacks and a tie-neck denim blouse, she is a dynamic, engaged speaker, sometimes asking questions of her interviewer or moving around the room to illustrate a point. Her descriptions of her duties often flow from administrative jargon to moving accounts of courthouse drama.

As trial court administrator, Barrier handles tasks such as coordinating civil hearings and scheduling juror summonses. But the full scope of her duties extends far beyond that.

In May 2020, Barrier also became the courthouse’s COVID-19 coordinator. Since then, she has worked with other top-tier court officials to establish the numerous shifting health precautions the courts have adopted over the past 20 months. 

Barrier is one of the courthouse’s two disability access coordinators, providing equipment like hearing aids and crutches to those who need them for court. And judging from the many visitors, phone calls and emails she received on a recent Tuesday morning, many court employees consider her their go-to problem-solver.

One of Barrier’s first challenges that day came from a person wanting to bring a service animal to court. In her 17 years working there, Barrier had never received such a request. But she knew who could help.  

She sent a quick email to, and left a voice message for, the disability access coordinator at the Administrative Office of the Courts, which oversees judicial functions for North Carolina.  Then she waited.

‘Oil upon those troubled waters’

Barrier recalled one occasion where she spotted a man arguing with an arbitrator after he’d missed his hearing. She told the man that the case was out of the arbitrator’s hands, but that she could reschedule it for him.

He turned his frustration on Barrier. He ranted for the entire trip to the ninth floor, and when they left the elevator, he was still too distraught to be reasoned with.

“He’s bent down like this,” Barrier said, crouching and staring at the floor with tense hands framing either side of her head. “He’s just, ‘This is not right, this is not fair.’”

Not wanting to tower over him, Barrier said she crouched to his level. She asked if he had a certain document, and he handed it to her. She copied it for him and rescheduled his case. Then she gave him her phone number and email address. That way, he could double-check the time before coming to court.

“He said, ‘You know what, I want to apologize for my behavior earlier,’” Barrier said. “’You know, you just come to the courthouse and people tell you things, and this case is for a lot of money.’”

Barrier sympathized. “I’ve been to places and people just tell you, ‘no,’” she said. “And then you find out, it’s not true.”

Barrier said she focuses on finding ways to get people a “yes.” And her coworkers bear witness to those efforts. The first time Clerk of Court Archie Smith — the courthouse’s chief administrator — met Barrier, she was dealing with a particularly disagreeable woman whose case was being transferred to Superior Court.

“She spread oil upon those troubled waters,” Smith recalled. “The next thing you know, they’re walking off together like best chums.”

Trial Court Coordinator Suzanne Hansen, who works under Barrier, marvels that her boss “never forgets a face or a name.”

Employees and laypeople alike frequently find themselves in Barrier’s wing of the courthouse, lost. Everyone in the wing is happy to give directions, Hansen said. But, she said, Barrier likes to accompany a person to make sure they get to the right place.

A ‘muddled’ work-life balance

During a recent interview, Barrier handled various mini crises typical of a Tuesday morning in the courthouse.

She got a response on her service animal question within half an hour: They are allowed in courtrooms, but a judge can order them removed if they interrupt proceedings.  

Barrier’s next challenge came from two out-of-county court interpreters who said other courthouses usually provide badges to ease their comings and goings. The Durham County court interpreter, Maria Owens, appeared sheepish as she approached Barrier.

Barrier immediately opened a cabinet and pulled out an ID card labeled “court reporter.”

“Can you send an email to me and we can work on getting interpreter badges?” she told Owens after handing her the badge.

Barrier remains in her office until 7 p.m. most evenings, Hansen said. And when she goes home, Barrier said she often takes calls at night and on the weekends.

Asked about work-life balance, Barrier said, “I don’t think I really have one. I think it’s all just muddled together.”

This devotion has limited her personal life. Barrier said she’s too busy to take care of so much as a “hermit crab,” even if she kept it in her office.

“It would surely die,” she said.

The note wall

 But Barrier doesn’t regret the time she devotes to her career. Instead, she sees her “work family” as essential to her life.

A portion of a wall in Barrier’s office testifies to her impact on this “family.” Countless cards, notes and letters clutter the space, many attesting to Barrier’s kindness and service.

“Dear Deneen, Maria and Patty,” Barrier’s former boss, Kathy Stuart, wrote in a handwritten note to Barrier and two others. “Thank you for traveling 350+ miles to Richmond last month so that you could surround me with love on a tough evening.” 

“Thank you again for your usual, wonderfully professional courtesies extended to me during my recent stop at your courthouse,” wrote attorney John Bussian in a typed letter. “Arranging hearing time within 24 hours and a way to obtain a copy of the file within minutes are truly remarkable feats of public service. No wonder I feel, in all the other courts in which I appear across the country, none approach the Durham County Superior Court!”

Barrier pointed out that she spends more time with her coworkers than she would with a spouse and children at home. She fought to contain her emotion while looking at the notes.

“Sometimes, when it’s tough and you need a bit of support, it’s good for me to go to that wall,” she said, blinking back tears.

 

PHOTO ABOVE: Deneen Barrier sits at her desk at the Durham County Courthouse. Photo by Josie Vonk, the 9th Street Journal.

 

 

Support beyond the court: A local non-profit’s work with homicide victims’ families

The murder victim’s mother rushes out of the bond hearing in tears. Marion Bailey hurries out after her. 

Bailey, a 74-year-old retiree wearing a bright purple sweatshirt and matching pants, convinces the distraught mom to sit on a bench outside courtroom 7D one recent morning at the Durham County Courthouse. Bailey holds the crying mother in her arms.

The mother has just heard Judge Orlando Hudson Jr. set bond for the man charged with murdering her son. The chief Superior Court judge ruled that the defendant had to pay  $150,000 to gain his freedom — frighteningly low, in the mother’s opinion.

Waiting in the hallway with a family friend is the deceased victim’s 8-year-old daughter. The girl watches her grandmother’s weeping, confused. 

“Grandmama just heard something that made her sad,” Bailey says to the little girl. “She’ll be all right in a minute.”

Bailey scoops up the child. Still sitting on the bench, she wraps one arm around the girl, the other around the murder victim’s mother. 

A Cold, Complex Process

Last year, 37 people were killed in Durham. Each homicide leaves behind grieving families. While the court system pursues justice, the care and support of these families is often left behind. 

Into that gap step people like Bailey, who works with the Religious Coalition for a Nonviolent Durham.  Its volunteers use grief groups, vigils, and the simple power of their presence to guide relatives of homicide victims through what can sometimes be a cold and complex court process. 

After the violent death of her sister Elizabeth Watson, the first thing Teresa McCall wanted was justice: “You want to know how justice is going to work. You want to know how quickly this guy’s going to be arrested, how quickly the trial can occur, how things are going to happen so that at least you can get some closure to the process.”

Three years after her sister’s murder in July 2018, they finally have a trial date for November. McCall is “sitting on pins and needles,” hoping it will proceed as planned. 

There are currently 65 pending homicide cases in Durham County and 94 total defendants, says Sarah Willets, spokesperson for the Durham District Attorney’s Office. 

Homicides can take years to resolve. The mountain of evidence must be processed by a state crime lab, and the severity of the crime means numerous pre-trial motions. Prosecutors are sometimes reassigned and defendants change attorneys, causing further delays. Some cases remain open from 2015. 

Once the process begins, families realize the court system is not focused on their loss. At a quarterly administrative meeting designed to get all pending homicide cases before a judge, “Each case might only be discussed for a couple of minutes,” Willets says.  “The defendant may or may not be there. The family’s loved one’s name might never be said.”

The lack of attention to victims devastates families. “I just want someone to care and acknowledge who my sister was,” says McCall, whose sister was 59 when she was killed. 

Unlike defendants, who have an attorney to advocate for them, victims have no representation. Prosecutors represent the state, leaving victims’ families without a role and often without a voice. 

Victims’ families are guaranteed only one chance to speak in court — at sentencing. The D.A.’s office has tried to address this by holding quarterly sessions to meet with families and discuss the court process, but Willets recognizes it falls short.

“There’s still not room to support people in the way that they need and deserve. Because at the end of the day, our staff also has a job to do in which they have to remain objective,” Willets says. “There is still a need for something outside of the court process.” 

That’s why the Coalition assists, and advocates for, victims’ families.  

“When you cannot pick up the phone and call [your loved one], it is a deafening sound in your mind,” McCall says. “And then to further feel like it’s just a process what happened to them. It’s not okay. And the Coalition ensures that we know that it’s not just a process. They ensure that we know that this person that got taken through anger, through whatever reason, that they mattered.” 

Constant Contact 

The Coalition was founded in 1992 by civil rights activist Leslie Dunbar and Reverend Mel Williams in the wake of rising gun violence in Durham. A non-profit, it supports the formerly incarcerated as they re-enter society and facilitates restorative justice, an alternative to the traditional court process.  It also supports families of homicide victims through its vigil ministry. 

The vigil ministry helps families navigate a confusing and emotionally taxing legal system. Coalition members give families rides to the courthouse, attend meetings with them, accompany them to hearings, and help them to fill out paperwork and prepare for trial.

Bailey and three vigil team members also keep track of all the homicide cases traveling through the Durham County Courthouse. They take turns spending Monday, Tuesday, and sometimes Wednesday there, trying to keep up with the ever-mutating court calendar.  They do this mostly to keep families informed. 

“It’s probably a total of maybe 30 people that you gotta stay in constant contact with,” Bailey says. The team frequently informs families of developments in their case before the court does. 

But the vigil ministry’s work goes beyond the courtroom. 

When a homicide is committed in Durham, the team immediately uses its community networks to offer support to the family. After several months, they may organize a vigil for the lost loved one. Vigils provide a space for family and friends to gather, mourn, and celebrate the victim’s life. 

The Coalition also hosts grief support circles on the third Thursday of every month. Homicide victims’ families come and share how they are doing, discuss their challenges with the court system, and find comfort in a community of people who understand their unique loss. 

Not all families accept support right away. 

Michelle Hall, whose 34-year-old son, Tavares Hall, was murdered by a stray bullet in October 2018, was not ready when the Coalition first reached out. “But they are patient, and they’re very kind,” Hall says. “[Bailey] stayed in contact with me. And finally, I was able to join one of the [grief support] meetings, and it made such a difference.” 

The group’s power lies in the shared experience. “It’s a very lonely place to be when you don’t have people who can share in your pain,” McCall says. “It’s very, very lonely until you talk to someone who truly understands.” 

For Hall, a Durham County Library employee of 22 years, the grief circles are bittersweet because, despite the pain that brought them together, the group has formed a strong community of love and mutual support. 

“I never wanted to be a member of it,” says Hall, 56, now a Coalition board member. “But I’m a member for life.”

Marion’s ministry

Bailey’s 20-year-old grandson Javaun Graves was shot and killed in 2015. Graves was one of her nine grandchildren and six great-grandchildren. Bailey was a volunteer with the Coalition prior, but after what she calls Graves’s “senseless murder,” she felt compelled to work with victims’ families. 

“I chose to dedicate myself to do anything I can to correct the system so my grandchildren have a chance at life,” Bailey says. “The ones that are still here.”

Bailey, who wears short gray curls and glasses, has a warm, comforting voice. But her dedication is fierce. Formerly an office assistant at North Carolina Central University, she has spent her retirement working tirelessly in the Durham community. The Coalition is just one of her many ministries. 

“When [people] say ‘I don’t know where I would be without the Coalition’…I think they are really talking about Marion,” says board member Susan Dunlap, who helps Bailey facilitate the grief groups.

Bailey is known for going the extra mile (literally) for homicide victims’ families. Once, “one of my guys was really upset,” and she drove all the way to Cary to comfort him. She takes phone calls in the middle of the night. She meets with school counselors to explain why a victim’s child may be struggling. She and the team deliver food to families in need. 

Bailey, who says she has no time for a significant other, remains in contact with all the families, even after their court case is resolved. McCall says, “Marion texts me all the time.” 

But she is most loyal to the mailman. She has already sent out 15 encouragement cards in October and is preparing her November batch. She sends cards to families around the anniversary of their loved one’s death, to honor missed birthdays, or to uplift anyone who needs extra care. 

The support goes both ways. After her three surgeries this year, “My families rallied around me. I got calls, I got cards, I got food, I got flowers.” Bailey says. “They stepped out of their own grief and their own worrying to sacrifice, to be sure I was OK.” 

“Marion gives us opportunites to take a breath,” McCall says. “She makes us feel like we belong to life.” 

PHOTO ABOVE: Teresa McCall, left, and Marion Bailey stand together at the 29th annual Vigil Against Violence, organized by the Religious Coalition for a Nonviolent Durham. The Coalition supports families of homicide victims, and Bailey is one of its staffers. McCall’s sister was killed in July 2018.

Ardor in the court: a judge and his toys

If someone asked you to picture a judge’s chambers, you might imagine a room from a “Law & Order” episode, with quilted leather furniture, towering wooden bookcases, and draping maroon curtains. You may see an American flag or thick stacks of tattered law books or portraits of old people in scalloped gold picture frames. 

You probably wouldn’t picture an extensive toy car collection, a secret candy drawer, or a framed 18×24-inch poster of “The Three Stooges.” But then again, you’ve probably never visited the chambers of the Honorable Archie L. Smith III. Because the first time you walk into the office of this judge and clerk of Superior Court, who has over 45 years of law experience (and white hair to prove it), you might wonder whether he shares the space with a third grader. 

On Smith’s wooden desk, a thick stack of papers covered in red annotations is situated right next to a tray full of colorful action figures, among them Snoopy and Smurfette. His deck of business cards, each featuring the great seal of the state of North Carolina, rests beside a tasteful assortment of food-shaped erasers. The wooden plaque with a golden gavel recognizing Smith’s service as president of the state conference of superior court clerks is barely even visible behind his arrangement of magic crystal balls.

And yet, there’s no third grader in sight. Just a gleeful 71-year-old Durhamite who wouldn’t dare take himself too seriously. The way he sees it, if he can refer to his desk as “the command post of the Starship Archie,” why wouldn’t he?

Once you climb aboard the ship, the first thing you’ll notice is Smith’s impressive wall of credentials. A 4×5 grid of various-sized, slightly crooked picture frames, showing off Smith’s degrees, certificates, and awards. It’s not an ego wall, though. It’s a wall of mileposts. 

“It gives me continuity with where I am now and how I’ve come along,” he says. 

Then, thinking that sounds too serious, he grins and adds, “And what else are you going to do with framed things?”

Below the frames, behind the command post, is another desk which holds Smith’s black Lenovo laptop, open but idle. It’s used for “this and that,” mostly communication. But when it comes to questions of the law, Smith much prefers to walk to the glass cabinet a few steps away and pull out one of 30-plus dark green law books, each dedicated to a different general statute of North Carolina. The books are exhaustive, but in his experience, Smith has found they don’t quite cover it all. So, he’s found alternative methods. 

For example:

If you came into Smith’s office to discuss a complicated motor vehicle collision, he may ask you to “hold on a sec” while he pulls two toy cars out of a drawer. “Let’s reconstruct the wreck,” he’ll say.

Archie Smith’s office has the requisite wall of framed credentials. But it also has plenty of knickknacks and tchotchkes. Photo by Josie Vonk – The 9th Street Journal

If you begin to cry at Smith’s desk while explaining the details of your case, he’ll most likely reach into his secret candy drawer and hand you a Lindor Truffle. “A little chocolate will make you feel better,” he’ll say.

If you find yourself angry in Smith’s office while talking about how somebody wronged you, he’ll grab a gag voodoo doll from another drawer (How many drawers does this guy have, anyway?) and offer you the opportunity to curse your enemy with “flatulence” or “bad breath.”

If you ask him what’s gonna happen with your case, and he’s not quite sure, he’ll grab a translucent crystal ball out of its ornate golden stand on his desk. He’ll hold it in both hands and gaze deeply into it for a while before looking up at you and saying: “I can’t tell you right now how your case is gonna turn out. I would if I could. Been trying to find one of these that works, but none of ‘em do. If I find one, I’ll call you right away.” Twelve crystal balls later, he’s still searching.

And if you were to ask Smith why he does these things, these totally unnecessary but completely charming things, he’ll tell you that he simply can’t help himself. He loves whimsy. 

“You know, some of the things in this office have nothing to do with anything,” he’ll tell you, as though you didn’t already know that. 

He might be referring to the 6-foot tall bonsai tree standing by the window that was given to him 30 years ago when it was just “an itty-bitty desk thing.” Or maybe he’s talking about the literal pile of rocks that sit in a bowl on a shelf.

“They’re little curiosities. I mean, I bet you don’t have one of these,” he says, grabbing a wind-up toy scorpion and letting it inch across the table. “I mean come on. That’s fun.” 

This is the way Smith explains most things in the Starship Archie. 

“Can’t throw that away,” he’ll say.

Or “That tickles the hell out of me.”

Or “Where’re you gonna find another one of these?? You need one of these.”

There are some things so weird, though, even Smith doesn’t know what to make of them; mostly gifts from his granddaughters, or his friend Fred, who “always finds the darndest stuff.” But you can’t throw away a gift, Smith explains, and it would be ungracious not to display one.

Hence, his tchotchkes take up most of the space on his shelves and room in the seemingly infinite drawers of his desk. 

However, there is one surface in Smith’s office that’s empty: a long wooden table just beyond the command post.

If you ask Smith why that is, he’ll tell you that this is where the serious business happens. Opposing lawyers argue over this table. Agreements are reached around it. Civilians’ fates are decided. 

“We can get down to the real juice here,” he says. 

But of course, the table is also used to celebrate staff birthdays, and, during the holidays, Smith uses it to display his “Carolina Christmas tree,” a little plastic evergreen with red tinsel. When there’s no seriousness to attend to, Smith wants this table to serve the same function as “the kitchen table in your mom and dad’s house.”

The same goes for his red leather couch, which he hopes will remind you of your living room sofa at home. And for his two granddaughters, it does. 

Whenever they come to visit, after tiring themselves out with their grandpa’s toys, they’ll inevitably pass out on this red couch. At which point Smith will go into his wardrobe, grab one of his two judge’s robes, and drape it over them as a blanket. The blanket-robe is easily differentiable from the robe-robe. It’s a significantly lighter shade of black, faded and frayed from years of naps. He doesn’t mind though. He only really needs one.

Smith knows that he’s got an unusual number of knickknacks for a county clerk, or anyone for that matter. But he also knows that a little joy can go a long way in a courthouse. And even with all his things, Smith can get down sometimes.

On these rare occasions, he’ll open a drawer at the bottom of his desk, and reach for a manila folder labeled, in his carefully penciled script handwriting, “Things Worth Thinking About.”

It’s filled with old newspaper and magazine clippings, notes from his granddaughters, and printed-out mantras. If you ask, he’ll take some of his favorites out and show them to you. But when you hand them back he’ll say “I’m not tryna be profound or anything” and divert your attention to the new model airplane Fred just bought him.

If you ever do have the pleasure of visiting the Starship Archie, on your way out, after Smith has offered you a parting mint, but before you’ve reached the doorway he might say, “I don’t wanna give the impression that I’m a lunatic, but I just like to enjoy life.” And you might think to yourself: boy, did “Law & Order” get it wrong.

Photo of Archie Smith in the Starship Archie by Josie Vonk – The 9th Street Journal

Despite COVID safety measures, trials collide at courthouse

In defiance of the sign outside, marking its maximum capacity at 16 people, Courtroom 7A was packed.

Twenty-five prospective jurors occupied almost every bench not cordoned off for social distancing. They sat not just on the blue X’s designating assigned seats, but also in half the chairs of the jury box, as well as a bench normally reserved for the defense’s friends and family.  

This wasn’t supposed to happen. 

The Durham County Courthouse has taken a cautious approach to jury trials during the pandemic. These proceedings were paused between March 2020 and January 2021 over COVID-19 concerns. And since restarting jury trials, administrators have fought to ensure that no more than one of them happens at once.

But the last week of September, for the first time in a year and a half, two jury trials overlapped. This unexpected event, the cause of the crowd in Courtroom 7A, left court officials bending rules and making last-minute judgment calls.

“In my mind, I couldn’t see it,” Trial Court Administrator E. Deneen Barrier said, “but apparently it happened.” 

How it happened

There are two ways in which limiting jury trials helps prevent COVID-19 spread.

For one thing, it reduces the number of people in the courthouse at any given time. And in Superior Court, where the county’s most serious civil and criminal disputes are settled, the one-a-day strategy keeps proceedings socially distanced in the spacious Courtroom 7D.

Courtroom 7A, a fraction of the size, typically hosts civil matters that don’t need a jury.

But courthouses are complicated, and sometimes things don’t go as planned. As defendants take plea deals and plaintiffs settle out of court, many scheduled jury trials never make it to the courtroom.

“A lot is up in the air when everybody walks in the door,” Barrier said.

The morning of Sept. 27, it was still unclear whether a scheduled criminal trial would start that day, Trial Court Coordinator Suzanne Hansen said in an email. Another jury trial was set to begin in civil court on Sept. 28. However, Hansen believed this would be postponed if the criminal trial moved forward.

The criminal trial did move forward – but Judge Michael O’Foghludha, who was to preside over the civil case, pushed for his proceedings to begin anyway. He got his way, resulting in the surprise double-booking.

Last-minute questions

The criminal jury trial involved an alleged assault, kidnapping and strangling in June 2018. And the civil trial stemmed from a September 2019 incident in which a Prius struck the plaintiff while she was crossing Duke University Road. 

Prospective jurors for the civil trial gathered downstairs, while those assigned to the criminal case milled around the seventh floor of the courthouse, wearing red “juror” badges. The court had empaneled these Durham residents the previous day.

Meanwhile, in Courtroom 7A, O’Foghludha briefed attorneys in the civil case on how a jury trial would work in a room that hadn’t seen one since before the pandemic. O’Foghludha had ready answers to basic questions about where the courts would hold prospective jurors and who would be in the courtroom at any given time. 

And he appeared in good humor, as he voiced his thoughts on dismissing prospective jurors.

“They may be terrible jurors, and you may not want them. In fact, you probably don’t want them,” he told the attorneys. “But I’m not excusing them from doing their civic duty.”

The clerk, meanwhile, appeared stressed. The trial would wind up taking a toll on the woman, who took a day off from work after it concluded.

O’Foghludha still had to resolve some issues on the fly.

Would jurors and attorneys get separate bathrooms, or would they need to share one? (They’d be sharing.) Could a deputy give jurors directions to the courtroom, or would they need an escort? (After consulting with the bailiff, O’Foghludha decided that would depend on how well jurors responded to instructions.)

At one point, even the judge tripped over the tricky logistics. He’d originally been talking as if 30 jurors would be in the courtroom at once, but realized midway through the briefing that there would only be 25.

Finally, with most details settled, O’Foghludha heard a few pretrial motions and then called for jurors to enter.

A grueling process

Selecting a jury is rarely quick or simple. But Courtroom 7A’s limited seating made this empanelment even harder than usual.

O’Foghludha acknowledged the challenges while welcoming prospective jurors.

“I know the question that’s on everyone’s mind right now is, ‘Oh my, how long is this going to take?’” he said.

To begin, the clerk called 12 names from a stack of shuffled index cards. She then had the 12 line up at the center of the courtroom and assigned each a juror number. Those who weren’t called exited.  

None of this is standard practice in the Durham County Courthouse, where everyone would typically have remained in the courtroom for the next leg of the proceedings.

Even with this smaller crowd, Courtroom 7A still exceeded its maximum capacity of 16 people. In addition to the prospective jurors, the room also held six representatives for the defense and prosecution, as well as the defendant and plaintiff’s spouses, the judge, the clerk, the bailiff and the court reporter. That’s 24 people.

Everyone present was masked, although one man’s mask kept slipping. None of the prospective jurors complained about the number of people in the room. But they generally respected social distancing.

Between 11 a.m. and 4:15 p.m., the prosecution asked a series of questions to determine if any of those summoned were ineligible to serve on the jury.

Some judges allow lawyers to dismiss prospective jurors as soon as they hear something disqualifying. However, O’Foghludha said he’d seen interviewees try to copy what others said in hopes of being disqualified. So he instructed the prosecution to hold off on challenges until it had asked everyone all of its questions. 

The first round of interviews ended with five of the 12 released. A deputy arrived with their replacements, and the prosecution began a new interview cycle.

The seven who’d already been interviewed watched from the benches in weary resignation.

During pretrial proceedings, O’Foghludha told the court he hoped to finish the trial by Oct. 1. In reality, the trial lasted until Oct. 7, with jury empanelment concluding on Sept. 29.

The jury found the plaintiff was not entitled to any damages.

The criminal trial, which ran as usual in Courtroom 7D, finished empaneling jurors toward the end of Sept. 27 and ended with a not guilty verdict on Sept. 29.

Will this happen again?

Before the pandemic, the Durham County Courthouse commonly held multiple jury trials on the same day, said Barrier, the court administrator. It could host up to four at once, though this strained courthouse resources.

The courts will someday return to that level of activity, but it’s unlikely to happen any time soon. September’s double-booking does not mark a shift in the courthouse’s overall approach.

“It’s just happenstance,” Barrier said.

PHOTO ABOVE: Users of the Durham County’s Courthouse must practice social distancing as a COVID safety measure. By Josie Vonk, The 9th Street Journal.